SUPREME COURT.-CIVIL SESSION.

Otago Daily Times, Issue 2016, 17 June 1868, Page 4

SUPREME COURT.-CIVIL SESSION.

Tuesday, June ICth. (Before Hia Honor, Mr Justice Chapman, i and a Common Jury.) His Honor took his scat at eleven o'clock. WHAT M A PIXTUHE I Peter Williams o. George Green and John CargilJ. Mr Kaeassoy appeared for the plaintiff, and Mr Barton, instructed by Messrs Kenyon and Maddock, for the defendant Green. The defendant Cargill, being nominally interested, and being no party to the suit, was not represented. The action was brought to try whether the defendant had a right to remove certain buildings, on land leased by him, prior to the expiry of hia lease. In 1800, one Gilbert Burns, then tho holder in fee-simple of a piece of land in Princes street, leaned it to a Mr David Scott, for a term of eight yc/ira. In 18G2, Scott subleased the sections to the defen- : dant, Green, for a term of aix years. By tho deed of lease provision was . made that if, at the end of tho term, Scott could not obtain a renewal of his lease, or tho defendant did not request the renewal of his lease, that Scott should pay to the defendant a sum not exceeding , L4OO, as tho value of any houses or buildings standing upon the land, that value to bo ascertained by tho award of arbitrators. The defendant Green entered into possession of tho land on the 2(ith February, 1862, and built on it a number of substantial three-storied buildings, known aa Green's buildings, and better known aa Belgravff Chambers. On tho 3rd of February last, his lease being nearly expired, ho servod upon the plaintiff, who sued as executor under the will of Scott, a notice asking that an arbitrator might be appointed to sco that ' he left upon tho land buildings to the value of L4OO ; and stating that if. waa : his intention to remove ali buildings ■ above that amount in value. Upon re- i ceipt of this notice, the plaintiff obtained i an exparte injunction to restrain tho de- ] fendant from removing any of the tone- < merits off the land, and brought this i action. Ilia contention was, that the i premises were fixtures, and were i part and parcel of the freehold ; and ] to this tho defendant replied that he ! is entitled, under the agreement, to re- « move all chattels not fixtures attached to i the freehold, and to remove all houses or i erections only deposited on the soil. He son tended that by law he waa not obliged < to leave upon the land any of tho buildings, but was willing to leave a portion, of < the value of L4OO at least. Ths question "< put to the jury was contained in tho following issue:—" Are the buildings, or 1 my or them, erected and built by the de- 1 •endant upon the hind in the declaration i mentioned, firmly embedded in, and fixed, t md fastened to, the soil of the said land, c so as to be part and parcel of the freehold c inheritance of and in the said land." t Mr Macassey, in stating the case c 'or the plaintiff, said chat thu latter 1< lad only a nominal interest in tho auction, s ,he lease to Scott, under whoso will tho )laintifr acted, having expired. The caso ii ras rather a question of law than of fact, . nit the issue put to the jury waa a simple h me, and it might bo treated as an is.sue h lirccted by the Court in its tquita'«le urisdiction. As a general rule of law, c rverything affixed to the soil was the pro- o >erty of the ground landlord, and unless b ho building could be removed without the c caat injury to the freehold, the annexaion waa complete. In this case the tl mildings were largo, three-storied, sub- tl tantial houses, upon a foundation of V touework, and the plaintiffs contention it fas, that they were fixtures, being incorK)rated with tho freehold. If this waa n iroved, and unless the defendant could b irove that what constituted the annexa- s< ion was a fixture for trade purposes or T :>r ornament, or could make a statutory ir bjection, tho plaintiff was entitled to a a erdiefc. JJ1 The following evidence waa given for w lie plaintiff:— T Samuel H. Mirama: I am City Sur- b oyor and Building Surveyor to the n Yjrporaiion. One day last "week, I, in a onjunction with Mr Clayton, examined 1 rreen's Buildings, Princes street. Mr ai Jlayton acte for ma as Building Surroyor tl rhen I hay©: private practice. I opened h he earth in, four places, and discovered a c tone foundation. At the back it was i hree inches below the surface of the soil in 1< ne pkvee,. and. about nine inches b^low the v jvel of the pavement of the, yard in a notbei^ aad in front about one inch I «lo.w tho pavement. The; external ii omulary of the building went down t a tho top of tho masonry, and covered I) he plates which carry the studs. I could t lot ascertain how the plates were fixed, J ior t indeed, see them without tearing tho luildimj. . The building ia three stories t igh, and it has two stacks of chimneys, o no external and the other internal, n ?hoy ate of brick upon atone foundations. 1 3ie foundation of the 'chimney at the I lorth end of the building is concealed, t Ihe external ehhintj is strapped to the i

boarding l.y three iron straps* 1 cannot say whether the straps arc fastened with screws or bolte. The building is apparently constructed in the manner buildings are generally constructed herej I could not determine how tho floor was supported, as I did not pull up the boarding. Thero are fireplaces on the groundfloor, and on the first floor. They have brick hobs and stone hearths. James Gore : I am a builder, and I know Belgravo Chambers. I lately madea survey of the buildings with Mr Armstrong. I lifted up a loose board in tho floor, and found that the wooden plate rested on a stone foundation. It had studs morticed into it. One sido of these studs was covered with tongned and grooved boards. Wo were unable to examine the second floor, as we found that the ceilingjoints had been cut nway. The building is compact, and one part of it could not fee moved without detriment to tho rest. James Armstrong, who had been with tho last witness when the aurvey was mado, corroborated his testimony. This closed tho evidence for the-plain-tifh Mr Barton _ said the defendant had! intimated his intention of only removingbuildings above the value of L4OO, although he claimed to have tho right to remove all tho buildings. The qucatksrt was, fixture or no fixture. The defendant's contention was, that having a short; lease, and not secure of a renewal, he» had purposely erected tho building, so that it could bo removed at any time withoutinjury to the freehold. The jury had been left to infer that, because tho building was set upon a stone foundation, it became a fixture ; but that was not tho law. In a case, where a windmill had been set upon a stono platform, it had* been held a chattel ; and a similar decision had been mado respecting a barn set; upon pillars. In tliia case, evidence would be given that tho houses were merely deposited on the land—that the chimneys were not affixed in a way that the removal of the buildings would cause inJ»»ry ; and, that were it possible to obtain sufficient power, the houses could bo lifted right up on" the land, above tho chimneys, leaving the latter untouched and uninjured. Mr Barton cited a number of cases, in support of his argument,, and he called tho following witnesses :— William Parker : I am a builder, and have been in tho trade for 27 years. I was employed at the erection of the first building, and I built the second one fopMr CJreon. Tho foundation was of bluostone, a perfect dry bed. Tho frame wast not fastened to the bed in any way, tho studs were tenoned into the bottom plates in ihe usual manner, and tho lower tier of joists was simply laid upon thefoundation. Tho building reata upon its own weight, and if I wore strong enough I could lift up the whole of tho building without taking up any of tho foundation. Tho studs are not fastened to the external chimney. When tho internal chimney waa built, the place was trimmed, and a clean space; was left for the chimney to go up. (The witness hero produced a model of portion, of tho building, and showed its construction from tho foundation upwards.) By Mr Macassey : Tho first buildingwas put up by a party of throe, and I worked for them. There is a flasliing; whore the chimney intersects tho roof. There is a Hashing to the internal chimney, but 1 do not think it is fastened to the roof. Tho three stories of the building were put up before tho chimney was commenced. Each storey can bo lifted, (separately, without injury to the othor parts. The external chimney runs clear of tho building. The mantel pieces aro (ixed to the chimneys, and the buildings, ire bo constructed that they can bo removed, and tho chimneys, with the mantel pieces, left secured. The frame of the first storey waa put up in a body, and waa supported by its own weight. The building had no piece of timber let in. tha foundation. By Mr Barton : Tho mantel pieces areof wood. Archibald Paterson, one of the builders of No. 1 building, corroborated the prerioun witness. Tho defendant stated that ho superintended the erection of tho building,.and lie described the manner in which it was put up. The whole building was capable >i removal from the foundation, without liaturbing tho foundation at all. Tho jxternal chimney was hedged by bands, jut thoso bands were not fastened to the thimney. There waa no fastening of any cind between the plafce and the foundation^ itotics. By Mr Macassoy : It was my original ntention to erect a three-storey building. Henry Thomas Green, who had.superintended the erection of portioai of the luilding, gave similar evidence. Mr Barton, in reviewing the evidence, ontended that hia case had boon made iut. The chimneys had" been proved to to distinct, and that tho straps did not onstituto the building fixtures.. Mr MaoasSey, in reply, submitted, that lie jury had to consider tho intention o£ lie defendant in erecting, tho building. Vas it intended to be permanent^ or was ; only a temporary construction. Tho Judge, in summing Tip, said tho sal question to decido wa% whether the* uOdingH were to bo, in reason and common . jnse, considered permanent constructions, 'h© lawj laid down nakedly, aa illustrated > English cases, was Wy simple ; but wooden erection here,was in a different osition from one in England, for thero it jould convey the idea -of tcmuorary use, 'hero was a different?,}, too,""between ». am and a house. Tho former would; lost likely bo easily removod, and, genorlly speaking, baras had no chimneyr*. hero were two elements to take into conideratjon—First, the gevieral nature ofhe building: if, wlien onoe erected, it \?as Qtended to be removed; second, the hkaneys : could the. jury say that* the enanfc could remove the building and cave them behind?. Were they not utonded to be p^rt of the buildinf, jid, if so, par/t of the freehold f >jd they not. shar. y that the building was ntended to bo -permanent? It was for he jury to eo/jsider too, whether thct >ands round tl» 3 cldmneys did not annex h!?u^Bß>»und bo make the latter form wrtof the freehold. The jury \-etired. Dnring their absence neJudge -.agreed to give leave to the side igainst ▼.horn-the case was decided to nove^fov a rule to set aside the verdict, me IVj^ after an abaence. of nearly am }onv, returned into Court, and answered fte '..Bane put to them in tho Affirmative, <o\w giving a verdict for the plaintiff;

AllEfiEß MALICIOUS FItOSECUTION FOB ITJIU UEY. J. N. Wood «. 11. S. Duffy.—Mr Ma•cassey, instructed by Mr Haggitt, sen,, appeared for tho plaintiff, .John Nugent Wood ; and Mr Smythiea, instructed by Mr Macgregor, for tho defendant. The plaintiff, who is one of the Wardens and Resident Magistrates on the Otago Goldfields, sought to recover LSOO damages for an alleged malicious prosecution. The declaration stated that, on the 24th of February, the defendant falsely, maliciously, and without reasonable cause, appeared before James Murdoch, one of Her Majesty's Justices of the Peace, and charged the plaintiff with having committed wilful and corrupt perjury; and that ho afterwards, upon that charge, caused A. 0. Strode, Ifaq., it.M., to issue a summons requiring the plaintiff to appear at the Resident Magistrate's Court, Dunedin, to answer the charge, and to be dealt with according to law. That he did so appear, but, in consequence of the defendant not being present to give evidence,' th« case was dismissed. That the plaintiff was injured in his reputation by the act of the defendant, Buffered pain in body and mind, waa prevented from attending to his duties, and was put to expense in defending himself from the charge. The defendant admitted the first portion of the declaration— to having preferred tho charge, but denied the remainder of the allegation. The plaintiff's case was as follows :— Tho defendant resides at Hyde, and the plaintiff waa, on the 14thof January last, appointed to the Mount Ida District. On tho day after his appointment, he was applied to by tho defendant to issue a distress warrant, in the case of Duffy and Lynch v. William Wallace, a case which had been under tho notice of his predecessor. Believing tho judgment to be illegal, ho refused to issue tho warrant, whereupon the defendant obtained a writ of marulamus, compelling him to give good reasons for his refusal. He did so in tho following affidavit, which was sworn to and filed in the office of the Supremo Court. In tho Supremo Court of New Zealand, Otago and Southland District. I, John Nugent Wood, &c, &c, do make oath and say, Ist. That I was appointed Warden at Mount Ida aforesaid, and entered upon my duties on the 14th of January, 1807. 2nd. That on the 17th or ISth <f that month, I waß applied to by Michael Sylvester Duffy for a distress warrant against the goods of one "William "Wallace, to levy the sum of LIB 9 10s and costs, which he alleged had been recovered by his partner and himself in tho Warden's Court at Mount Ida ; and that I thereupon referred to tho causo lists of tho Warden's Court at Hydo and Nascby (both of which arc within tbo jurisdiction of tho Warden at Mount Ida aforesaid), and found that on the Gth December, 1866, tho cause list at Hyde contained an entry showing tho said plaintifPH claim had been heard on that day by Charles Brood, the then Warden, whom I succeeded, and that tho case was dismissed. 4th. That, it further appeared from tho cauiio list of the 20th of December, that the same case had been heard at Hyde before -Charles Broad, and tho following entry is made in tho column headed "Judgment," " Adjourned until next Court day, of whichdoe notice will bo given ; itema allowed, LIBJJ 10»; question proposed as to whether Corcoran or Wallace in liable for the amount." sth. Thatinthecauseli«tofthe3rdJanuary, 1807, tlia case is again entered, with note, •'Judgment to be given at 11 o'clock, on Tuesday morning, at Mount Ida;" and I found, on reference to the Warden's Court book, at Naseby, in the said district, that on Tuesday, the Bth January, 1807, judgment is entered in the following words, "Verdict for the plaintiff, LlB9 10s and coats against ■defendant's share." Oth. By tho 77th section of tho Qoldfielda Act, 1800, it 13 enacted that, in case of a rebearing, tho case shall be reheard bofore a Warden and Assfssora; and it appears from the cause list of tho 20th December, and the 3rd and Bth of January, that tho causo was beard and adjourned, and re-heard, and judgment pronounced by the Warden Charles Broad, alone—without tho assistance of Assessors. And I therefore refused to grant a Warrant of Distress, aa the judgment appeared to mo to be illegal, and I might by issuing a warrant, Bubjeet myself to an action for damages, at the suit of the said William Wallace. 7th. That I have repeatedly offered to the said Michael S. Duffy, to rehear the case, so •that a regular judgment —according to law— might be entered, and upon which I could, if ■required, issuo execution. Bth. That in other respects tbo judgment, upon tho face of it, appeared to bo had, for uncertainty; and- that I was not warranted in forwarding any proceedings upon it. Attached to tho affidavit were copies of tho causo lists, and other documents referred to. Tho information laid by tho defendant alleged that the plaintiff had knowingly committed perjury, with intent to deceive and mislead the Court. The following witnesses were called :— Alfred Chetham Strode, Resident Magistrate, Dunedin : I know the plaintifi in this action. I believe him to be a Warden of Goldfields in this Province. I know the defendant. I saw him for tho fh'st time at my office in or about tho month of February last. Ho called upon me, and had a conversation with mo. He asked mo to take an information for perjury against Mr Wood, the Warden at Mount Ida. I suggested that tho better course would bo for him to apply to the ■local or nearest Magistrate, pointing out that Mr Wood was a public officer. After some further conversation, ho left, as I thought for the purpose of following my advice. Two months afterwards I saw him again at my office. Ho tcld mo that ho had been served with a notice by Mr Murdoch, Resident Magistrate at Waikouaiti, calling upon him to ; attend at the ResidentMagistrate'sCourtat Dunedin, on the 12th, instead of the 30th of the month, to institute the prosecution against Wood for perjury. He said that it would inconvenionco him to attend on the 12th, as he wanted to procure a certain paper. On the 12th I proceeded to hear the charge against Mr Wood. It was a charge on information. I produce the information, which was sworn on tho 24th day of February, 18G8, by Michael Sylvester Duffy, before James W. Murdoch, 11.M., Hawksbury. [Document put in.] The charge set out in the information is, that Mr wood committed perjury in an affidavit before the Supremo Court The » case was called on in open Court, and as there was no appearance of tho prosecutor, tho charge was dismissed, and Mr c Wood discharged. The defendant clearly " t X nderstood that tho case waa to bo called i

on on the 12th. I received the letter produced about the Oth March. It purport* to bo written by the defendant. .Sir—l have the honor to.inform you, that I did as yon requested. I called upon Mr Murdoch bat ho had left tern, j£d, although Mr Wood's emissary has intimated threats if I attempted to prosecute him, and yet I have done my duty, not as a mere fiHlFenng party, but bo far as laying an in- , formation and uummoning witnesses, duti- i tally touching a public offence by Her Majestyb pnb"ic officer ; and aa 1 have arranged my individual affaire to enable me to attend the hearing at Hawksbttry on the 30th, and as it will also be inconvenient aad a considerable additional expense for me to attend hero on the 12th, I am quite indifferent any further about it. I suppose it may be necessary to produce and prove the Cause lists and Summons bearing the bailiff s endorsement of the day of service, and also evidence to corroborate certain statements made by Warden Wood, touching the alleged hearing and dismissal of the cause previous to the service of the summons, the want of which may frustrate justice. The witnes*es being already summ ned to attend on the 30th, will require notice of countermand as well as fresh summonses, of which I cannot, and must not, be expected to bear the expense of a repetition, having already been half ruined—entirely the effect of the perjury. Mr Wood appeared on mimmons. I received the letter produced, dated Ist Juno, 18G8, on the day of its date. It is as follows:— Duncdin, Ist June, 1868. Sin—l am given to understand that it was entirely by your own individual act that my information against Mr S. N. Wood for perjury waa professedly contained. Such was not by my sanction or approbation ; indeed, you are aware it was against my wish. Therefore, I beg to inform you, if I sustain any damage, I shall most assuredly call upon you for redress, for having professedly acted in my nairw and on my behalf, but without, and indeed, against my authority.—l am, Sir, your obedient Servant, M. S. Dukky. By Mr Smythies : The information was sent to me by Mr Murdoch. I heard from Mr Murdoch that the defendant had paid it. Mr Murdoch and Mr Wood came to mo together subsequently. The first time Mr Muidoch came to me, ho asked mo to hear the case, in order to consult tho convenience of the town witnesses. The Registrar of the Supremo Court, Mr Catomore, was the principal witness, and the Supremo Court was sitting at the timo. He said further that Mr Woods was a public officer, and was under buspension, thorcfore it was very necessary ■ that tho case should be heard without delay. Tho fact of Mr Wood being a , public officer was not the solo reason urged by Mr Murdoch in his request \ that 1 should hear tho case. I , fixed tho 12th as tho day of hearing. , I refused to received the information. I ( knew that Mr Wood was a public officer. , I knew that the information was laid upon ?n affidavit. I issued a summons upon \ tho information sent to me. Mr Duffy 3 did not ask me to issue a summons. Mr Duffy saw mo before the Bth of March. , He told me that it would be inconvenient i to hear the case on tho 12th. He did not j sa^ that he could not ensure attention of witness on the 12th. He might not have \ done it, but it would have been a matter t for adjournment. I did not know his f object. He said ho could not attend, j He did not ask mo to put it off. I know ] nothing about tho affidavit having been ( mislaid at the time. I think Mr Murdoch . told mo that a summons luid been issued ! for the 30th. Duffy might have told me I that he was quite willing to go on with ( the case then. f By Mr Macassoy : When an informa- t tion ia laid, the informant can have no c control over it. As a matter of course, a j summons or warrant is issued, and it then f becomes a public matter. If the defen- a dant had appeared on the 12fch, and had v been able to procure the attendance of hia f witnesses, ho would not Jiavo been placed f at a, disadvantago. - It would have been a j matter for adjournment. ' ± John Nugent Wood : I am Warden and Resident Magistrate of the Otago Goldfields, and have held office since November 1802. I succeeded to the Mount Ida district on 14th January, 1807. Hyde is a sub-district. Mr Charles Broad was my 1 predecessor. He is now out of the Colony. The day after I succeeded, I was requested by the defendant to force a judgment, j Lynch and Co. v. Wallace. The judg- j ment was before Mr Broad. The day y that I arrived the first application a mado to mo was by Mr Wallace, for ], a re-hearing of the case. I told him- \, that I could not grant the application. I }, found that tho case first stood for Gth j, December, and it had then been dis- £ missed. I produce the record of cases heard on that day. In another charge a sheet, dated December 20th, I find tho case a</ain. I see that it is ad- j, journed until tho next Court day. I £ find, too, another adjournment ; and jj afterwards I found that judgment had „ been given. When Duffy applied to me, o 1 only saw tho first causo list. About a c week afterwards, I had a conversation j, with Duffy. I had refused to issue o tho execution. I told him that tho case had been heard and dismissed, »j and that it would require to be fj reheard by Assessors under tho Act. g j On tho 9fch June, I was served with f ( notice from tho Supremo Court. It was a q, rule nisi for manthimus, obtained by f, Duffy. Tho affidavit was -sworn on 21st f ( June, before Mr Stamper. He was one „. of the solicitors acting for Duffy. The w affidavit showed upon what grounds I „. mado tho assertions. I saw Messrs Duffy n , and Wallace. The latter said he would y hand over the share in my presence I p. ■was a Warden at the timo the charge was made against me. I was suspended, and Mr a Sampson placed in my stead, from the jf 3rd until after the case was dismissed on c ] the 12th. I appeared before Mr Strode on the 12 th, and the chargo waa dis- g, missed. Duffy was not present Ho a] never told me that he was going to ci make a charge of perjury against me. jj By Mr Smythies : I was not directed f a by the Superintendent to commence the M actiun. I was not reinstated on condition V( that I did bo. A re-hearing implies a „, first hearing. Duffy told me that the # case had not -been heard. I pointed out g to him the alteration'in the summons. I _ do not know when it was altered. _ . • The cross-examination of the witness ai was not concluded, when the case was q adjourned until to-day at 10 o'clock. tr =^—y _~ , ' ._;•" . ~ ~ it Why are wives who mend children's f^ clothes nft°r the rest are a-bed. like the M enemy mentioned in the parable ? Because ac they seio tear* while the husband inea sleep. lo